No other conclusion can be drawn from the evidence than that the property taken belonged to the plaintiff. The flour in the store occupied by Hunt & Baker, was unquestionably parcel of the lot purchased by the plaintiff from Dennison, and shipped to Troy by Hooker’s canal boat, the Charter Oak. But if the evidence on the question of property had been conflicting, the referee having found the title in the plaintiff, such finding is conlcusive. The taking, also, by the defendant, is clearly established.
It is, however, now urged that the action was wrongly brought against the sheriff, he not being liable in trover for taking the specific chattels, named in the writ of replevin; that the writ is a protection to the officer, though the title and possession of the property be in a third person in no way a party to the action.
It is remarkable that the books furnish no adjudication on this point, unless it be the case of Hallet v. Byot, (Carthew's Rep. 380.) Chief Justice Bronson, in Shipman v. Clark and others, (4 Denio, 446,) intimates that the process in replevin may be a sufficient protection to the officer, though he take the chattels from the possession, and they be the. property of one who is a stranger to the wrii¡. This, however, was but a die-
The ground assumed for holding the process a justification to the officer, is, that unlike an execution which directs the "taking of the property of the defendants, it does not command him to take the property either of the plaintiff or the defendant, but the specific chattels named in the writ; and he cannot demand indemnity, as in ease of an execution, but is liable to indictment and a civil action besides, if he refuse to execute the process. That the taking must be intended to be the act of the law, it being done pursuant to the mandate of valid process.
Though not absolutely necessary, I am inclined in this case, to directly meet the question, whether an officer taking the specific chattels which the writ issued on the action of replevin, directs him to take is protected, though he seize the property of a third person in no way a party to the action. It seems to me to be in hostility to general and well settled principles of law relating to the rights of property. The owner of chattels is entitled to the unmolested possession, enjoyment and disposition of them. He who undertakes to exercise control or dominion over them, in hostility to the owner, whether he be an officer or other person, acts at his peril. The law gives the owner the usual remedy by action; or he may retake the goods without process if he can do it peaceably. These are general principles. It is not pretended that the process is a justification to the plaintiff in replevin, or to those who act under his authority, in removing the goods of a person, other than the defendant in the action. All are trespassers, unless indeed the officer who delivers the goods to the plaintiff, is shielded by the writ. On an execution against the goods of A. the officer acts at his peril if he take the goods of B. Should it alter the case, so far as the rights of B. are concerned, that the process directs the - 'T-er to take specific chattels, which are the property of B. ? The
The act in relation to the action of replevin, authorizes the defendant in the action, or any other person in possession of the goods and chattels specified in the writ, to give notice of a claim of property therein to the sheriff, and demand a jury to try the title. If the jury find in favor of the claimant, the sheriff shall not deliver the property to the plaintiff in replevin, unless he will indemnify him to his satisfaction, and refund to the claimant the fees of the sheriff and jury in trying the title. These provisions, say this court, in Spencer v. McGowen, (13 Wend. 256,) “ are designed rather for the security and benefit of the sheriff, than of the party claiming the propertybut why provide for making the officer secure, if in all cases the process in replevin is a protection to him ? Again, says Sutherland, J. “ the person claiming title to the property is not prohibited by these provisions from taking any other course to try or enforce his right, which upon general principles he might have done before this act was passed.” It is urged that the plaintiff in this case might either have put in a claim of property, or have prosecuted the plaintiffs in the vyi'it of replevin, in trespass or trover. But
Harris, Parker and Wright, Justices.]
Had it been made to appear (which it was not) that the property described in the writ of replevin was the identical property taken by the sheriff, I think he would not have been shielded or protected by the process, in taking the property of the plaintiff, who was in no way a party to the action. ,
The motion to set aside the report of the referee must be denied.